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Faux Concern for Judicial Ethics

For many years Community Rights Council (CRC), a small, progressive non-profit organization, waged war on privately funded judicial education. According to CRC, allowing judges to attend expense-paid educational seminars sponsored by organizations such as the Foundation for Research on Economics and the Environment (FREE) and George Mason University’s Law and Economics Center threatened the independence, impartiality and integrity of the federal judiciary. So, CRC hounded judges who attended these seminars, publishing reports and even filing ethics complaints. CRC liked to claim it was concerned about judicial ethics, but it was always clear the real driver was concern that some seminars were too solicitous of conservative or market-oriented views. The substance of their complaints was rebutted time and again, as in this article by Judge A. Raymond Randolph, but CRC was unrelenting, and eventually encouraged Senator Russell Feingold to introduce legislation that would effectively put an end to privately funded judicial education. (For more on this campaign, see here, here, and here.)

CRC metastasized into a new organization with a much broader mission – the Constitutional Accountability Center (CAC), but the campaign against judicial seminars continues. Earlier this month, former CRC executive director, now CAC President Doug Kendall renewed his attacks, calling upon three federal judges to resign from FREE’s Board of Directors, a Board on which I’ve served since 2008. This latest attack was prompted by the disclosure of an 2005 ethics opinion in response to a judge’s inquiry suggesting service on FREE’s Board could be improper for a federal judge.

We have been here before. CRC filed ethics complaints against the federal judges sitting on FREE’s board in 2004, prompting some to resign. Judge Danny Boggs of the U.S. Court of Appeals for the Sixth Circuit stood his ground, however, and CRC’s complaint against him was dismissed with a strongly worded opinion by Judge James Loken of the U.S. Court of Appeals for the Eighth Circuit. Judge Loken found CRC’s charges meritless and suggested CRC’s attacks did more to undermine public confidence in a partial judiciary than any judge’s involvement with FREE. I wrote about this for NRO here.

The 2005 opinion cited by Kendall suggests it would be improper for a judge to serve on the Board of an organization if such service would “reflect adversely upon the judge’s impartiality.” This could occur if Board service caused a judge to be associated with an organization’s specific policy positions. The opinion concluded service on FREE’s Board could cause such a problem — though another contemporaneous evaluation concluded the precise opposite. As the opinion noted, judges have served on the boards of various policy organizations, such as the Urban League, that are far more active in policy debates than FREE has ever been. Like many non-profits, FREE has a philosophical orientation, but it does not get involved with contemporary policy debates, let alone advocacy or litigation. Judges also serve on the Board of Governors of the American Bar Association, which has taken explicit positions on issues such as abortion, gun control, and same-sex marriage. The most FREE has done in recent years is espouse a general philosophy, sponsor rigorous and well-regarded seminars, and distribute occasional op-eds by FREE staff. It’s hard to see how any of this could reflect adversely on a judge’s impartiality.

The aim of these attacks have always been to discourage judges from attending judicial education seminars at which they might be exposed to ideas Kendall and his colleagues dislike, if not shut down the seminars altogether. After numerous reports attesting to the value and substance of such seminars, and rejecting as unfounded negative ethical complaints, it’s time to leave such seminars well enough alone.

CAC is correct that the unpublished and previously undisclosed 2005 opinion letter uses stronger language than I suggested in my original post. I disagree with that opinion and do not believe it does or should control. The 2005 letter is inconsistent with the relevant published Advisory Opinion on service on nonprofit boards (No. 2) — an opinion letter dated June 2009. If CAC is going to proclaim that “the Federal Judiciary’s Codes of Conduct Committee has spoken,” they should reference the more recent iteration of the relevant published Advisory Opinion. They do not because it does not support their campaign against FREE. I would also note that the 2005 opinion letter also suggests FREE is more policy oriented then it is.

More broadly, I believe that an ethics standard that would disallow participation on the board of an organization that has a general policy view, but takes no official positions on present policy disputes and primarily conducts educational programs (such as FREE), but allows participation on the board of an organization that regularly takes positions on issues ranging from abortion to immigration policy, including present legislation and issues that regularly come before courts, would be absurd — even more so if the Board of the latter organization (but not the former) has a policy-implementation role. I also have a hard time taking seriously any organization’s professed concern for judicial ethics if it complains about the former but is silent about the latter. CRC (now CAC) would be such an organization, as it has only raised concerns about judicial ethics when it serves its ideological mission. For instance, CAC has been shockingly mute about a sitting federal judge serving as Secretary of the Board of Governors of the American Bar Association, even when that judge is nominated to an appellate court. If this is acceptable under the existing codes of conduct (as I believe it is), then so is service on FREE’s Board.